New Reporting Obligations

July 2015

Virginia colleges and universities are increasingly required to take a more active role in combatting sexual violence on campus. On May 28, 2015, Governor McAuliffe signed into law a state statute that changes the reporting obligations of William & Mary faculty and staff relating to sexual violence. Under the new law, sexual violence is defined as physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent. Sexual violence is a form of sexual harassment. Non-consensual sexual intercourse – what you might think of as rape, although that is a criminal term that we do not use in our policies – is a form of sexual violence.

The new law is effective July 1, 2015. It modifies the already vital role played by faculty and staff in our ongoing efforts to prevent and respond promptly to incidents of sexual violence.

The statute is designed to ensure that sexual violence against a student, or occurring on university campuses (or certain other university-related property), is reported promptly to the university’s Title IX Coordinator. The Title IX Coordinator, Kiersten Boyce, then convenes a confidential review team—the Title IX Review Team. The team decides whether health and safety concerns dictate disclosure of the reported incident to local law enforcement or whether anonymous disclosure to the relevant prosecutor is required.

To understand the new obligations created by this law, below are some defined terms used by the new law, as well as in W&M policy.

Responsible employee is a term used by courts and enforcement agencies to refer to those employees who are required to report harassment (including sexual violence) of which they become aware. As explained in the Sexual Harassment and Sexual Harassment Guidance for Faculty and Staff, at William & Mary, all faculty and staff are considered “responsible employees.” (There are some very limited exemptions for confidential resources such as professional counselors, described below.)

Campus Security Authorities, or CSAs, are designated employees with responsibility for campus and student activities. Full-time, continuing faculty are Campus Security Authorities, as well as designated staff. The Crime Reporting Policy, in compliance with the Clery Act, requires CSAs to report sexual violence occurring (or reported to have occurred) on our Clery Act geography. The Clery Act Guidance for CSAs explains the CSA role in more detail.

Clery Act geography is, basically, our campus property, other property controlled by the university, and adjacent public property. Clery Act geography is defined in the Crime Reporting Policy and explained in the Clery Act Guidance for CSAs.

Sexual violence is defined by the new state law as physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent. Sexual violence is a form of sexual harassment. Non-consensual sexual intercourse – what you might think of as rape, although that is a criminal term that we do not use in our policies – is a form of sexual violence.

The new law reinforces a reporting obligation under William & Mary policies and makes some changes. The obligation that is reinforced is the obligation of all responsible employees to report sexual violence and other harassment of a W&M student that comes to their attention. The changes are the requirements:

of all responsible employees to report sexual violence occurring on our Clery Act geography – even if it doesn’t involve a W&M student. Prior to the new state statute, only those responsible employees who are also Campus Security Authorities needed to report such incidents.

of a responsible employee to share all the information they have about the incident with the Title IX Coordinator. Prior to the new state statute, if the incident did not involve a student, the person making the report (such as a Campus Security Authority) could withhold identifying information such as the name of the reported/suspected perpetrator. However, if the incident involved a William & Mary student, the employee would already be required to report identifying information, so this change only relates to incidents not involving students.

to report sexual violence to the Title IX Coordinator. The previous law required certain reports to be made to the William & Mary Police. Under the new law, sexual violence must be reported to the Title IX Coordinator.

Because all continuing, full time faculty are Campus Security Authorities, this new law does not substantially change their reporting obligation. This means that for most W&M faculty, this new law does not create any new obligation.

For those William & Mary employees who are not CSAs, the state law does create a new duty to report sexual violence occurring on our Clery Act geography. This report must be made promptly to the Title IX Coordinator.

The law exempts from the reporting obligation those (very few) employees who serve as confidential resources, to the extent they obtain the information about the sexual violence incident in the course of providing services as health care professionals, professional counselors, administrative support persons for health care professionals, attorneys, or victim support personnel.